Wooddy v. Jameson , 5 Idaho 466 ( 1897 )

QTJAKLES, J.

May 21, 1894, tbe plaintiff Wooddy commenced tbis action against the defendant, L. D. Jameson, to recover a debt, and obtained an attachment, which was then levied upon certain real estate situated in the city of Moscow, Latah county, occupied by the defendant and his wife as a residence, and also on certain farm lands, consisting of ninety-eight acres, situated in Latah county. On December 21, 1894, plaintiff recovered judgment against the defendant for $900 and costs. On December 22, 1894, the defendant, L. D. Jameson, executed, acknowledged, and had recorded in due form his declaration of homestead claiming the city property, occupied as a residence, as his homestead under the statute in such cases made and provided. On December 22, 1894, the First National Bank of Moscow commenced an action against the defendant, L. D. Jameson, to recover a debt, and obtained an attachment which was levied upon the said ninety-eight acres of farm land. On February 26, 1895, the said bank recovered judgment against the said defendant for $542, upon which an execution was issued May 11, 1895, under which execution the said farm lands were sold at sheriff’s sale, June 15, 1895, and bid in by said bank. An execution was thereafter, July 30, 1895, issued in this action upon the judgment in favor of the plaintiff, under which execution the sheriff advertised the said residence and farm lands for sale, the sale to take place on August 31, 1895, on which day, and prior to the sale, the defendant, L. D. Jame-son, served a written notice on the sheriff, requiring the said sheriff to first sell the said farm lands before selling the homestead under the execution of plaintiff. Thereupon, and before the sale took place, the First National Bank, as plaintiff, commenced an action for injunction against the said sheriff and one J. F. Cropp, to whom the plaintiff in this action had assigned his said judgment, but to which last action the defendant, Jameson, was not made a party; and in this action the honorable district judge of the second judicial district made an order for an injunction enjoining and restraining the said sheriff and the said Cropp from selling the said farm lands under said execution, until after they had first sold the said residence property or homestead. No writ of injunction issued, but the order for the injunction appears to have been served upon the sheriff. Thereupon the sheriff proceeded to sell, under the said execution, the said homestead of the defendant, which was bid in by one K. 0. Skattaboe for the sum of $700, and thereupon the said sheriff sold the said farm lands, which were bid in by one J. H." Horton for the balance due on the judgment in this action, $425, but which said Horton never paid; the sale occurring August 31, 1895. On the third day of September, 1895, the defendant, L. D. Jameson, and his wife, Lucinda Jameson, served notice of motion and petition to set aside the sale of said homestead on the said sheriff, K. 0. Skattaboe, the First National Bank, and on the attorneys for the plaintiff, Forney, Smith & Moore, who were also attorneys for the said bank and the said Skattaboe, and which motion was afterward heard in open court on evidence introduced by the said Jameson orally, and affidavits on behalf of the said Skattaboe, and the said motion was sustained, and the said sale was set aside. From the order setting aside the sale of the homestead the said K. 0. Skattaboe and the said First National Bank appeal to this court.

The appellants rely principally upon two grounds for a reversal of said order, to wit: 1. That the remedy sought by the defendant could not be attained by motion, but, if at all, only by suit; 2. That the proceeding to set aside the said sale was a collateral attack upon the said injunctional order, and the court had no jurisdiction to hear and determine said motion. We think that neither of these grounds are tenable. The proper remedy to set aside a judicial sale which has been WTongfully made, prior to the execution of the sheriff’s deed, is by motion in the principal action. Notice of the motion should be served upon the adverse party and upon the purchaser. This was done in the ease at bar. (Boles v. Johnston, 23 Cal. 226, 83 Am. Dec. 111; Dorland v. Smith, 93 Cal. 120, 28 Pac. 812.) While there were many questions of fact raised on the motion, and passed on by the court in its findings, there was no material question of fact at. issue. In the affidavit or petition (sometimes called petition and sometimes affidavit in the record) which was served with notice of the motion it was expressly set forth that at the time of the sale the defendant, who was present, by writing directed the sheriff to first sell the farm lands, and this averment of fact was nowhere controverted, but expressly admitted, on the trial of the motion. TJnder section ■4484 of the Eevised Statutes, the defendant, had the right to direct the order in which the property levied on should be sold. Having done so, the sheriff had no authority to sell the homestead until.he had first sold the farm lands. But it is argued that the said injunctional order directed the sale of the homestead to be first made. To this we say that said injunctional order was void as to the defendant, and did not deprive the defendant of his said statutorj1- right, the same having been made in an action to which the defendant was not a party. The sheriff should have respected the said injunctional order by suspending the sale of both parcels of land levied upon until the matter should be finally determined by the court, and all interested parties had had their day in court. The doctrine of marshaling securities is well established, and fully recognized. The injunction suit brought by the bank was an attempt, indirectly made, to marshal the securities between creditors in an action to which the principal, party interested, the common debtor, was an entire stranger. Such practice is not recognized or tolerated, either in law or in equity, and parties who attempt such practice deserve severe censure. The sale of the farm lands nnder the bank’s execution was subject to the lien of the Wooddy attachment and judgment. Under the statute the sale ■of the homestead was void, because the sheriff did not sell the property in the order directed by the defendant. The lower ■court properly set the sale of the homestead aside, and the order appealed from is affirmed, with costs to the respondent.

Sullivan, C. J., and Huston, J., concur.